Vinod Kumar Kori vs State of Chhattisgarh, Through Secretary, Home Department and others

Sanjay K. Agrawal, J.—Petitioner while working as Sub Inspector in the Department of Home remained unauthorisedly absent approximately for a period of three months (22/05/2008 to 20/08/2008). He was subjected to departmental proceeding by issuance of charge sheet on 27/11/2008 and he was terminated from service on 19/02/2010, against which, he preferred an appeal before the Appellate Authority and the Appellate Authority dismissed the appeal, and the revision too was dismissed by the Revisional Authority.

Feeling dissatisfied against the order of termination affirming in appeal and in revision by the Appellate Authority and the Revisional Authority, respectively, instant writ petition has been filed by the petitioner questioning the said termination on the ground that during the course of Departmental Enquiry, the Disciplinary Authority appointed only Inquiry Officer to conduct enquiry but did not appoint any Presenting Officer and the Inquiry Officer himself acted as investigator, prosecutor and judge, which was in violation of the principles of natural justice, as such, Departmental Enquiry and punishment inflicted stood vitiated. It was further pleaded that petitioner was not allowed to take assistance of other Government servants as per rules and the punishment imposed for alleged misconduct (unauthorized absence) for three months i.e. termination of service, is disproportionate to his alleged misconduct and contrary to the provisions contained in the Chhattisgarh Police Regulations (hereinafter referred to as "Police Regulations").

Return has been filed by the respondents/State opposing the writ petition stating inter alia that petitioner remained unauthorisedly absent for three months as the petitioner was being prosecuted for the offence punishable under Section 420/34 of the I.P.C. and penalty of termination inflicted upon the petitioner is in accordance with law, which has also been found favour by the Appellate Authority and the Revisional Authority.

Additional documents and rejoinder have been filed by the petitioner.

Mr. Abhishek Pandey, learned counsel appearing on behalf of the petitioner, would submit that Disciplinary Authority did not appoint Presenting Officer in terms of sub-rule 5(c) of Rule 14 of the Chhattisgarh Civil Services (Classification Control and Appeal) Rules, 1966 (hereinafter referred to as "the Rules, 1966") and the Inquiry Officer acted as investigator, prosecutor and judge and as such, Departmental Enquiry was conducted in violation of the principles of natural justice. He would further submit that as per sub-rule (8) of Rule 14 of the Rules, 1966, Disciplinary Officer/Inquiry Officer did not enquire from the petitioner whether he would like to engage anyone from the Department to defend him as the petitioner belonged to Class-III service. He would finally submit that penalty of termination inflicted upon the petitioner for alleged misconduct is disproportionate to his alleged guilt and contrary to the provisions contained in the Police Regulations particularly Regulation 226 applicable to the petitioner.

On the other hand, Mr. Dhiraj Kumar Wankhede, learned Government Advocate appearing for the State/respondents would submit that petitioner remained unauthorisedly absent for a period of three months and therefore, adopting a procedure fair, just and consistent with the applicable Rules, Departmental Enquiry has been conducted and he has been terminated from service, as such, there is no infirmity in the order of termination. The Appellate Authority and the Revisional Authority have also confirmed the order passed by Disciplinary Authority, therefore, concurrent finding recorded by three Authorities holding the petitioner guilty of misconduct and awarding penalty of termination warrants no interference by this Court in exercise of jurisdiction under Article 226/227 of the Constitution of India and writ petition deserves to be dismissed.

I have heard learned counsel for the parties and considered the rival submissions made therein and also gone through the record available with utmost circumspection.

At this stage, it would be appropriate to notice sub rule (5)(c) of Rule 14 of the Rules, 1996 which provides as under:-

"5(c) Where the Disciplinary Authority itself inquires into any article of charge or appoints an inquiring Authority for holding any inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be taken as the ''Presenting Officer'' to present on its behalf the case in support of the articles of charge."

A careful reading of the above-stated Rule would show that appointment of the Presenting Officer is not mandatory and such an appointment depends on discretion of Disciplinary Authority as it is an enabling provision which gives discretion to the Disciplinary Authority to appoint any other Government servant as Presenting Officer to present the case on behalf of the Disciplinary Authority. But, the said provision does not permit an Inquiry Officer to act as Presenting Officer and conduct examination-in-chief of the departmental witnesses and cross-examine the defence witnesses.

The law in this regard is well settled that the adjudicator has to be impartial and free from bias and shall not be the prosecutor.

In the matter of Union of India through its Secretary, Ministry of Railway, New Delhi and others v. Mohd. Naseem Siddiqui, 2005 (1) LLJ 931, the Division Bench of Madhya Pradesh High Court has laid down the law in this regard.

Paragraph-7 of the report states as under:-

"7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets: (i) The adjudicator shall be impartial and free from bias, (ii) The adjudicator shall not be the prosecutor, (iii) The complainant shall not be an adjudicator, (iv) A witness cannot be the Adjudicator, (v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges, (vi) The Adjudicator shall not decide on the dictates of his Superiors or others, (vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated."

Further, in paragraph-16, Their Lordships summarised the legal position by observing as under:-

(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.

(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non-appointment of a Presenting Officer, by itself will not vitiate the inquiry.

(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.

(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.

Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.

In the matter of Workmen of Lambabari Tea Estate v. Management, Lambabari Tea Estate, 1966 II LLJ 315, Their Lordships of the Supreme Court have considered a case where the Manager of the Estate presided over the inquiry, recorded the statements, cross-examined the delinquent employees and also recorded his own statement and observed as under:-

"........ The Manager did not keep his functions as the Enquiry Officer distinct but became witness, prosecutor and Manager in turn. The record of the enquiry as a result is staccato and unsatisfactory ...."

Thus, it appears that domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of the inquiry. He should have an open mind till the enquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed.

Reverting back to the facts of the present case, it would appear that in this case, admittedly, the Presenting Officer was not appointed by Disciplinary Authority to present the case. But it is quite vivid that the departmental witnesses namely, Shri Mulchandra Soni, Shri G. Uday Krishna and Shri Arvind Kujur have been cross-examined by the Inquiry Officer and the said Inquiry Officer submitted the report of the examination-in-chief and cross-examinations of the aforesaid departmental witnesses. It appears that Inquiry Officer has conducted regular examination-in-chief by leading departmental witnesses through the case and also put questions to the departmental witnesses and cross-examined departmental witnesses to establish the case of the prosecution and thereby the Inquiry Officer has acted as a prosecutor and as such, Inquiry was biased.

In the matter of State of Uttaranchal and others v. Kharak Singh, (2008) 8 SCC 236, the Supreme Court has held that act of the Inquiry Officer is opposed to principles of natural justice where he acted as investigator, prosecutor and judge by observing as under:-

"17. On the other hand, one Mr. P.C. Lohani, Dy. Divisional Forest Officer, Nandhaur acting as an inquiry officer after putting certain questions and securing answers submitted a report on 16/11/1985. No witnesses were examined. Apparently, there was not even a presenting officer. A perusal of the report shows that the inquiry officer himself inspected the areas in the forest and after taking note of certain alleged deficiencies secured some answers from the delinquent by putting some questions. It is clear that the inquiry officer himself has acted as the investigator, prosecutor and judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court."

Thus, it appears that no Presenting Officer was appointed and Inquiry Officer himself has conducted whole Departmental Enquiry by conducting regular examination-in-chief by leading prosecution witnesses through prosecution case and also cross-examined the departmental witnesses to some extent and thereby also worked as prosecutor, which is in violation of principles of natural justice. Neither the Disciplinary Authority nor the Appellate Authority and the Revisional Authority considered this aspect of the matter while inflicting punishment and examining the appeal as also the revision on merits and thereby order of termination and appellate order as well as revisional order deserve to be quashed.

Apart from this, there are two more reasons not to uphold the order of termination. By virtue of sub-rule (8) of Rule 14 of the Rules, 1966, the Investigating Officer was required to enquire from the petitioner, who was Class-III employee, as to whether he is willing to take assistance of other Government servants in accordance with the Rules, 1966. In this regard, contents of memo dated 29/12/2008 may be noticed usefully herein:-

VERNACULAR MATTER OMITTED.

A bare perusal of the aforesaid memo would show that no information was given to the petitioner to take assistance of other Government servants, as required by sub-rule (8) of Rule 14 of the Rules of 1966.

In the matter of Bhagat Ram v. State of Himachal Pradesh and others, AIR 1983 SC 454, Their Lordships of the Supreme Court have observed as under:-

"-------In fact, justice and fair play demand that where in a disciplinary proceeding the department is represented by a Presenting officer, it would be incumbent upon the Disciplinary authority while making appointment of a Presenting Officer to appear on his behalf simultaneously to inform the delinquent of the fact of appointment and the right of the delinquent to take help of another Government servant before the commencement of inquiry. At any rate the Inquiry Officer at least must enquire from the delinquent officer whether he would like to engage anyone from the department to defend him and when the delinquent is a Government servant belonging to the lower echelons of service, he would further be informed that he is entitled under the relevant rules to seek assistance of another Government servant belonging to department to represent him. If after this information is conveyed to the delinquent Government servant, he still chooses to proceed with the Inquiry without obtaining assistance, one can say there is substantial compliance with the rules. But in the absence of such information being conveyed, if the Inquiry proceeds, as it has happened in this case, certainly a very vital question would arise whether the appellant delinquent Government servant was afforded a reasonable opportunity to defend himself and if the answer is in the negative, the next question is whether the Inquiry is vitiated?

Further, Their Lordships of the Supreme Court have observed as under:-

"The principle deducible from the provision contained in Sub-rule (5) of Rule 15 upon its true construction that where department is represented by a Presenting Officer, it would be the duty of the delinquent Officer, more particularly where he is a class IV Government servant whose educational equipment is such as would lead to an inference that he may not be aware of technical rules prescribed for holding inquiry, that he is entitled to be defended by another Government servant of his choice. If the Government servant declined to avail of the opportunity, the inquiry would proceed. But if the delinquent officer is not informed of his right and an overall view of the inquiry shows that the delinquent Government servant was at a comparative disadvantage compared to the disciplinary authority represented by the Presenting Officer and as in the present case, a superior officer, co-delinquent is also represented by an officer of his choice to defend him, the absence of anyone to assist such a Government servant belonging to the lower echelons of service would unless it is shown that he had not suffered any prejudice, vitiate the Inquiry."

The determination of the above-stated question brings me to the next submission raised to the quantum of punishment, for which, it would be relevant to quote Regulation 226 of the Police Regulations, which states as under:-

Punishments�Offences for which given.� The following rules should be observed in determining what penalty should be awarded for any particular offence:

(i) (a) Dismissal is the last resource and should, ordinarily not be inflicted until all other means of corrections have failed.

(b) If dismissal is considered too severe a punishment for sub-Inspector he should be removed from the service (This does not amount to dismissal.)

Note � Dismissal order would be effected on the same date when it is passed or on the same day when the dismissed person relieved and shifted from the service.

(ii) The vacancy of an officer dismissed should not be filled in the case of a constable or permanently in the case of a bead constable and above until the period of appeal has expired.

(iii) Reduction in rank is a suitable punishment for incompetence, or cases of serious dereliction of duty in which dismissal or removal is considered to be too severe a punishment.

Above-stated provision of the Police Regulations clearly states that imposition of penalty of dismissal from service is last resource to be adopted by Disciplinary Authority and should, ordinarily not be inflicted until all other means of corrections have failed.

In the case in hand, the petitioner remained absent from 29/05/2008 to 20/08/2008 approximately for a period of three months as he was arrested for some offence on 30/05/2008 and released on bail on 07/08/2008. It appears that penalty of termination has been inflicted for remaining unauthorisedly absent for three months ignoring the mandate of Regulation 226 of the Police Regulations.

In the matter of Commissioner of Police and others v. Sandeep Kumar, (2011) 4 SCC 644, Their Lordships of the Supreme Court on the question of quantum of punishment, have held in paragraph-13 as under:-

"13. In B.C. Chaturvedi v. Union of India, (AIR 1996 SC 484 (three Judges Bench) the question posed for consideration was as to whether the High Court/Tribunal can direct the authorities to reconsider punishment with cogent reasons in support thereof or reconsider themselves to shorten the litigation. In this case, at para 18, this Court has observed as under:-

A review of the above legal position would establish that the Disciplinary Authority, and on appeal the Appellate Authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the Disciplinary/Appellate Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases. impose appropriate punishment with cogent reasons in support thereof."

Thus, on the basis of aforesaid discussion and following the law laid down by Their Lordships of the Supreme Court in above-stated cases, I am of the considered opinion that in the Departmental Enquiry infliction of penalty of termination from service to the petitioner is disproportionate to the misconduct which is said to be proved against him. Thus the finding of misconduct as well as punishment awarded to the petitioner is not in accordance with law.

As a fallout and consequence of aforesaid discussion, impugned order of termination dated 19/02/2010 as well as order of Appellate Authority dated 10/11/2010 and order of Revisional Authority dated 03/03/2011 are hereby quashed. The petitioner be reinstated in service forthwith.

The petitioner has prayed for consequential benefits. The impugned order was passed on 19/02/2010. The petitioner has neither averred in the writ petition nor brought any material on record to hold that during this period i.e. from 19/02/2010 to 13/01/2016, he was not gainfully employed anywhere. The normal rule is, a workman whose service has been illegally terminated would be entitled to full back-wages except to the extent he was gainfully employed during the enforced idleness. (See M/s. Hindustan Tin Works Pvt. Ltd. v. the Employees of M/s. Hindustan Tin Works Pvt. Ltd. and others, AIR 1979 SC 75.) Thereafter, in the matter of M/s. Reetu Marbles v. Prabhakant Shukla, AIR 2010 SC 397, Their Lordships of the Supreme Court have emphasised the need for enquiry/material with regard to gainful employment before directing full back wages particularly when the award is being modified and awarded only 50 per cent of the back-wages from the date of termination of service till reinstatement. Following the law laid down in this regard and facts and circumstances of the case, I deem it appropriate to award only 50 per cent back-wages from the date of termination till the petitioner is reinstated in the service.

The writ petition is allowed to the extent indicated herein-above. However, the respondents/State is at liberty to proceed in accordance with law.

No order as to costs.